Non-Advocate Power Of Attorney can be permitted to address the court in case of close relative

Amiya Kanti Das and Anr Vs Smt Sefalika Ash

Calcutta HC

24/04/2019

GA No. 966 of 2019 APO No. 60 of 2019 with T.S. No.25 of 2016

About/from the judgment:

The Advocates Act, 1961 - Section 32 - The right of practice is different from the right of appearance in a particular case. The right of practice is a right of advocates to practice the profession of law before all courts, tribunals, authorities, etc, but the right of appearance to appear in a particular case on the permission granted by the court under Section 32 of the Act is an exception to the right of practice by advocates.

 

While we are in agreement with the views expressed by various High Courts that the power of attorney has no right to address the court, however, at the same time we are of the opinion that there is a discretion in the court in the case of a close relative to permit the power of attorney to address the court. This discretion can be exercised when the court is assured that the relative appearing on behalf of the petitioner is conversant with the law, the facts and is in a position to address and assist the Court. In other words he must inspire confidence in the Court of his ability to address the Court on the issues which arise in the matter.

 

The Advocates Act, 1961 - Sections 29, 32 and 33 - The Code of Civil Procedure, 1908 - Order 3 Rules 1 & 2 - Section 2 (15) and 119 - Original Side Rules - Chapter 1 Rules 1 & 5 - “Pleader” - Recognised Agents - Meaning of - Advocates to be the only recognised class of persons entitled to practise law - Power of Court to permit appearances in particular cases - Advocates alone entitled to practice - Appearances, etc., may be in person, by recognised agent or by pleader - Unauthorised persons not to address Court - A non-advocate, when he seeks permission to ‘appear’ cannot be permitted to ‘address’ the Court on the strength of the power-of-attorney.

 

The provision of Order 3 Rule 1 which permit appearance, applications or acting in any Court by a power-of-attorney holder on behalf of a principal are subject to the provisions of the Advocates Act 1961 in particular, Sections 32 and 33. In view of legal and professional ethics and conducts and etiquette at the Bar a party cannot conduct his case himself without discharging his counsel appearing for him in the case. The words ‘appearance’ and ‘acting’ do not include ‘pleading’ and a recognised agent who is entitled to appear and act for a party is not entitled to a right of audience. A right to examine and cross-examine witnesses is, acting and not pleading. Order 3 does not deal with pleading at all. It deals with a restricted class of acts in connection with the litigation in Court and it is with regard to that restricted class of acts that Order 3 permits recognised agents to be appointed. The power of attorney holder cannot depose in place and stead principal. The provision of Order 3 Rules 1 and 2 of the Code empowers the holder of the power of attorney to ‘act’ on behalf of the principal. The word ‘acts’ mention in Order 3 Rules 1 and 2 is confined only to ‘acts’ done by a power of attorney holder in exercise of power granted to him by virtue of the instrument. The term ‘acts’, hence does not include deposing in place and stead of the principal.

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Knowledge and content of about almost all their respective descriptions are borrowed from law-related blogs and websites, we, therefore, wish to give proper credit to all the respective law-related blogs and websites like LiveLaw, Bar and Bench, LatestLaws, PathLegal, FirstLaw, Lawctopus, IndianKanoon, Manupatra, LegallyIndia etc.. Many of the judgments are also taken from them websites of Hon'ble Supreme Court and other respective Hon'ble High Courts!

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